June 13, 2003

Milestones: Today’s a mini-wedding anniversary (Karen insisted we get married on a Friday the 13th). More surprising to me: Furdlog will be one year and one month old on Monday (missed the one year anniversary already!)

After churning through all of these, we come to Prof. Balkin’s conclusion:

Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.

Now, even though I think I know what Prof. Balkin is talking about, this is a tortuous way to end his argument. At the risk of a dangerous hubris, let me try a different way of framing it. (Although, as I expect you can see, it’s not terribly terse <G>)

The ways in which we perceive/receive the variety of human creative expressions have been continuously modified by our technological advances. The invention of writing eventually made story-telling, for example, into a solitary experience because the story-teller’s expression of the tale could be put down on paper and retrieved at the reader’s convenience, rather than requiring that s/he wait on the story-teller to arrive and tell his tales. Similarly, we have technologies that allow us to experience a wide variety of creative expression without having to rely upon actual physical human performances - recorded music, broadcast television, etc.

The injection of technological intemediaries into the process of converting artistic expression into personal experience has dramatically expanded the scope of expressions available to all of us. The power of these technologies is such that they are almost invisible to us - consider that fact that we speak of “playing” a CD, when in fact nothing could be further from the truth. I might play a piano or a guitar, but all I do when I “play” a CD is to supply a machine-readable data source into a device designed to generate electrical pulses that are converted by other devices into air vibrations.

The very invisibility of this technology is a wondrous thing, affording us an incredibly varied set of cultural experiences, but these technologies can also become a dangerous crutch. Because we have adopted these technologies so seamlessly, we have failed to recognize the vulnerabilities that come with reliance upon them and, thus, we have also failed to think about the necessary defenses. These expressions, which form the basis of our cultural experience and are the foundation upon which we build our next generation of art and culture, lie behind a curtain of technology that we assume obeys our will as easily as the “Play” button does on our DVD player.

But, the DMCA and other instruments are forcing us to realize that this technological curtain is not one we can casually push aside as we seek to employ the expressions of the present to create the future. The technology that has given us such opportunity has blinded us to the fact that we depend upon its cooperation as we seek to built upon the past. And the broader, less technologically savvy members of society are only now learning that these technologies can be employed to serve masters other than the user, in ways that are inconsistent with our sense of what is the socially appropriate application of cultural expressions.

It is this inconsistency between what our socially constructed notion of “fair use” & other acceptable ways of exploiting creative expression and what we have engineered into the instruments we use to experience these expressions that is causing us such difficulty today. And, I believe that what Prof. Balkin means with his closing sentence is that the use of a legal stricture to protect the ways that technology can alienate us from an expression is a First Amendment violation because, even though we have allowed technology to intermediate between us and cultural expressions, technology should not be used to lock those expressions away from the public domain.

are purposely perpetuating the illusion that the technologies of distribution have nothing to do with the expression whose protection is being debated. Because of the way that we conceptualize these artifacts, access is implicit. I purchase a music CD because I expect that my player will turn it into sound - otherwise, it’s just another AOL coaster. (Remember why the it was so funny to learn that there were those so swept up in the Window 95 PR push that they bought the software even through they didn’t own a computer?)

The technology and the expression go together, because only together does the human experience emerge that was the artist’s creation. The DMCA suggests that the two can be split apart without harm, and Prof. Balkin is saying that doing so is implicitly a First Amendment violation because it disables the development of the experience (speech) from the expression (the digital distribution)- and thus Justice Ginsberg’s conditions for safeguarding traditional fair use are not met.

Part of solving this problem is going to be confronting the fact that the distributed artifact is not a creative expression without access to the technology implicit in the artifact’s design. Essentially, just as we think about protecting speech, we are now in an era where we have to think about the need for similar protections around the technologies employed in generating speech. (Think about it - why do we worry so much about literacy? Not to sell books! See Stallman’s The Right To Read)

Until we get past this, there will be hopeless confusion throughout all our social institutions. Markets won’t price efficiently, laws won’t get made or enforced sensibly - and worse, the societies that figure it out first will have significant advantages over those that cling to this attractive, but crippling illusion.

Here you have a whole black-market industry, with entrepreneurs using dozens of burners to manufacture CDs and then offer them for sale, and Jack Brown can’t tell the difference between that and file sharers? This market could be controlled by rather obvious enforcement means. But file-sharers don’t make money on their shares, and, despite the best efforts of the RIAA, will not be erased from the market, only out-competed.

and from Keita Broadwater

However, I was surprised at the implication that piracy will mean the end of musical tradition for Mexico or any other culture. I think the opposite is true. That’s the good part about the music industry’s possible fall.

Music was here long before record companies existed and will be here long after these companies close their doors. The music industry stagnates musical development by focusing on a few artists and styles. Artists focus on popularity and money instead of their art. So, I won’t lose much sleep if U.S. record sales go down by 50 percent tomorrow.

I know that artists have to eat like the rest of us, but I don’t believe they have to be rich.

A diverse group of movie archivists, preservationists, and creators sent a message to Congress today that without reforms in the copyright system, the majority of the nation’s historical motion picture heritage faces destruction as the film on which it’s printed crumbles away. They expressed their support for a proposal that would allow ‘orphan films’ - those that are no longer under active copyright management - to enter the public domain so that they can be copied, archived, and preserved.